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Stiritz v. Martin

Supreme Court of Arkansas

October 11, 2018



          Trotter Law Firm, PLLC, by: Scott C. Trotter, for petitioners.

          AJ Kelly, Deputy Secretary of State and General Counsel; and Michael Fincher, Associate General Counsel, for respondent.

          Wright Lindsey & Jennings LLP, by: Stephen R. Lancaster and Gary D. Marts, Jr.; and Steel, Wright & Gray, PLLC, by: Alex T. Gray and Nate Steel, for intervenor.


         Petitioners Judith Stiritz, Billy Carroll Wheeler, Kenneth Ray Carney, and Bobby Gene Smith, individually and on behalf of Ensuring Arkansas' Future, filed this original action seeking to enjoin the Secretary of State Mark Martin from placing Issue Number 4, a proposed constitutional amendment concerning casino gambling, on the ballot for the general election on November 6, 2018. Petitioners claim that the proposed amendment's popular name and ballot title are insufficient. With our consent, Don Tilton, individually and on behalf of Arkansas Jobs Coalition, has intervened in support of the proposed amendment. Because we conclude that the popular name and ballot title are sufficient, we deny the petition.

         Arkansas's Attorney General certified this proposed amendment's popular name and ballot title on May 23, 2018. The Secretary of State certified the sufficiency of the proposed initiative measure on September 5, 2018. As certified, the popular name of the proposed amendment is:

An Amendment to Require Four Licenses to be Issued for Casino Gaming at Casinos, One Each in Crittenden (to Southland Racing Corporation), Garland (to Oaklawn Jockey Club, Inc.), Pope, and Jefferson Counties

         The complete text of the ballot title, as certified, is appended to this opinion. On September 12, 2018, petitioners filed this original action. This court has jurisdiction under both Amendment 7 as codified in article 5, section 1 of the Arkansas Constitution and Arkansas Supreme Court Rule 6-5(a).

         Petitioners raised twenty-seven challenges to the proposed amendment. Three challenges pertain to the popular name and twenty-four concern the ballot title. This court reviewed and considered each challenge; however, many of them necessitate no analysis in this opinion because they were wholly unsupported by any factual or legal argument. We have frequently stated that we will not research or develop arguments for petitioners. City of Greenbrier v. Roberts, 354 Ark. 591, 127 S.W.3d 454 (2003). Accordingly, we limit our discussion below to those arguments adequately presented to our court.

         I. Popular Name

         We first consider the challenges to the popular name of the proposed amendment. The purpose of an amendment's popular name is "to identify the proposal for discussion prior to the election." May v. Daniels, 359 Ark. 100, 104, 194 S.W.3d 771, 776 (2004). It is "primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title." Id. It must not be misleading; it must be intelligible, honest, and impartial. Id. While it cannot contain catchphrases or slogans that may mislead or give partisan coloring, it is not held to the same stringent standards as the ballot title. Id.; see also Ark. Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984).

         Petitioners first argue that the popular name is insufficient because it designates Southland Racing Corporation and Oaklawn Jockey Club, Inc., as two entities that will receive a casino license, but the amendment's text does not specifically name those corporations. Petitioners contend this omits pertinent information and is misleading. As it is undisputed that Oaklawn and Southland are the only franchise holders that meet the description contained in the amendment, we find that it is informative, not misleading.

         Petitioners also assert that the popular name suggests that the Arkansas Racing Commission must issue four casino licenses, one in each of the four counties. They argue this is misleading since the amendment provides that for a casino to receive a license in Pope and Jefferson Counties, the casino applicant will have to meet certain requirements. Therefore, the possibility exists that the Commission could not issue four casino licenses. We conclude that this is not misleading. A popular name need not identify all future scenarios. "[B]ecause so little is required of a popular name, we have never held a proposed measure invalid solely because of an incomplete description of the act by the popular name." Gaines v. McCuen, 296 Ark. 513, 516, 758 S.W.2d 403, 404-05 (1988). The popular name is an identification tool and simply cannot explain every eventuality of the actual amendment.

         II. Ballot Title

         This court decides the sufficiency of the ballot title as a matter of law. Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160. The ballot title (1) must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law; (2) cannot omit material information that would give the voter serious ground for reflection; and (3) must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. Parker v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996). The ballot title need not contain a synopsis of the proposed amendment or cover every detail of it. Rose v. Martin, 2016 Ark. 339, at 4, 500 S.W.3d 148, 151. If information omitted from the ballot title is an essential fact that would give the voter serious ground for reflection, it must be disclosed. Id., 500 S.W.3d at 152.

         A. Lack of Definitions and Misleading Terms

         Petitioners argue that the ballot title fails to define key terms for the voter and that certain terms are misleading. They first argue that of the eleven terms defined in the amendment's text, only two-casino gaming and net casino-gaming receipts-are defined in the ballot title. Our court has disapproved of undefined terms in a ballot title that are highly technical, obscure, that attempt to mislead voters, or that hide the actual nature of the proposal. See Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). However, a term's definition need not appear in the ballot title if it is readily understandable. See id. We have previously held that terms such as state lottery, charitable bingo game, and charitable raffle do not require a definition. Id.; see also Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008) (holding that omitting a definition of "state lottery" did not make the ballot title misleading or insufficient). Here, the terms that the petitioners object to being undefined in the ballot title include casino, franchise holder, intoxicating liquor, net casino gaming receipts, sporting events, and wholesaler. We do not find these terms obscure or highly technical. They do not require definitions in order for voters to understand this amendment's scope and import; therefore, voters are not misled by their omission.

         Similarly, petitioners claim that the term "casino gaming" is incomplete and misleading because it fails to state that lotteries are excluded from the definition. However, "casino gaming" is defined in the ballot title as gambling "with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine . . . as well as accepting wagers on sporting events." This mirrors the definition contained in the amendment, and we find it to be a common appellation. In Parker, we concluded that voters could readily understand terms such as "state lottery" and "casino gambling." 326 Ark. 123, 930 S.W.2d 322. Likewise, because we assume that voters can readily differentiate these two terms, we find that voters will not be misled. Again, a ballot title is not "required to include every detail, term, definition, or how the law may work." Cox v. Martin, 2012 Ark. 352, at 9, 423 S.W.3d 75, 83.

         Finally, as in the popular-name challenge, petitioners argue that the ballot title is misleading because it states that the Commission is "required" to issue four casino licenses. Certainly, the amendment places requirements on casino applicants in Pope and Jefferson Counties that, if not met, could result in the Commission's not issuing four licenses. We reject this argument because the ballot title explains this process and the requirements for applicants, and voters ...

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